Thursday, November 17, 2011

14 Nov 2011: Spotlight on British lawyers

This post deals with the order by the tribunal criticising the three British lawyers who are part of Sayedee's defence team.

For comments see the end of the post

[The post dealing with the order relating to the application seeking the recusal of the tribunal's chairman, also given on the same day, will be up shortly.]

Right at the beginning of the days hearing, the chief Prosecutor Mr. Golam Arif Tipu rose and told the tribunal that on 10th of November, there was an article in the Daily Sangram, (a Jamaat-e-Islami paper) which mentioned that Nizamul Haque the chairman of the tribunal, was ‘unfit to proceed with the case as chairman of the tribunal in view of his being a member of an inquiry commission. Well this is a very vital issue which effects the dignity and performance of this court. I invite you to take action.’

Justice Zahir Ahmed asked him to sit down and then asked the defence lawyer Tajul Islam to come up. The judge said that the tribunal had received an e-mail addressed to the register of Tribunal from some foreign lawyers namely Toby Cadman, Steven Key and John Cammegh where they expressed their view that the chairman of the Tribunal should resign, and asked whether the foreign had consulted with Islam?

[To download the letter that was sent, click here]

Islam said that ‘they had no personal discussion with me. Perhaps the seniors discussed it. Personally they did not speak with me.’

The judge then asked Mr. Sayedee to come to the front of the court and he was asked whether he had ‘engaged any foreign lawyer in your case’. Sayedee said that they were appointed through local lawyers. One judge asked whether the lawyer consulted with him before sending this e-mail? And Sayedee responded by saying he did not have the opportunity to consult with them.

There was then a minor verbal spat when the prosecution raised an issue about whether Islam was whispering into Sayedee’s ear or not, and Islam said that he had a right to assist his client. ‘It is a client’s legal right to get legal advice,’ he said. After one comment was made by one of the prosecutors, Islam said that he was being threatened. The judge responded that he was also receiving threats.

Justice Zahir said, ‘we are asking Mr. Sayedee and if he doesn’t understand then we will repeat the question.‘

Justice Fazle Kabir then passed the order relating to the recusal application which is posted on a seperate page.

After that order was given, the senior lawyer on the defence team Abdur Razzaque (who was only in court because the tribunal was dealing with the recusal application) was asked about the letter that was sent by the three British barristers to the Tribunal. Razzaque said that these men are very senior lawyers, with one having represented Milosovicz, another having worked with Steven Rapp and that the tribunal should take the matter up with the Bar Standards Board whether or not there has been a breach.

‘I am in agreement with contents of the letter, but they have decided to send the letter,’ he said. ‘I do not support the writing of the letter, but I support its content.'

The judge then read out section 709 of the Bar Standards Board code (see below in order) and asked whether the barristers were entitled to write such a letter.

Razzaque said that the barristers thought they had that right. He said that the barristers were appointed from outside Bangladesh and so the Code of Conduct for the Bar of England and Wales was not applicable. He said that although barristers in UK can only be instructed by solicitors, they can be directly appointed by clients from outside the UK and in such cases, the Code of Conduct for Bar of England and Wales would not apply. ‘They are writing the letter from outside the country. They have been denied the right to come to Bangladesh,' he said

The judge said that he had looked at the Bar council code over the last two evenings, and did not find any exception like this.

The judge asked whether the barrister had consulted with the him before sending the letter. ‘No they did not,’ Razzaque

Justice Zahir then read out the following order:
Yesterday, 14 November, was for hearing of application filed by accused Delwar Hossain Sayedee on 27 October seeking recusal of Mr Justice Nizamul Haque the honorary chairman of the ICT.

Pending the application for recusal, on 9 November, the registrar of the tribunal received an e-mail communication from Mr Toby Cadman stating
‘Please find attached a letter for the attention of the Chairman of the Tribunal. We would be most grateful if it is brought to his attention as soon as possible. We submit this letter with the greatest respect to the Honourable Chairman, but consider it appropriate in the interests of justice to ensure that a highest standards of professional integrity are maintained before the Tribunal.’
The said letter dated 8 11.2011 was an e-letter titled, ‘Recusal letter’ and was signed by Mr Steven Kay QC, Toby Cadman and John Cammegh all from the chamber of Anthony Berry QC of 9 Bedford Row, London WC1, introducing themselves as the counsel representing Delwar Hossain Sayedee. It was addressed directly to Mr Justice Nizamul Haque, tribunal chairman and asked him to recuse himself as chairman of the ICT with immediate effect.

After perusal we are really surprised to note that under what authority and power does Mr Toby Cadman, Mr Steven Kay and John Cammegh work and sent such an unusual address to chairman by mail to a supreme court judge of Bangladesh.

Some three international names have been claimed to be representing Delwar Hossain Sayedee. We have perused the Vakalatnama [power of attorney] for representing Sayedee, and we could not find any excuted Vakalatnamfor these international names, in favour of the accused .

We also asked Sayedee in open court whether he has engaged any foreign lawyer or not. He responded that he has some foreign lawyer who had been instructed thorough his national lawyer for giving them legal advice but that he has no personal knowledge of what they say and write.

In a footnote in the mail it had been noted that this e-mail and any file attached are confidential and legally privileged, that the e-mail is intended solely for person or individuals to whom it is addressed, and that if the e-mail is sent to the wrong person it should be deleted and that the sender should be notified or the IT manager of the chambers on 0207 489 2809. But it is sorry to say that the attached letter has been forwarded to the national press and the Daily Sangram published the contents of the letter on 10 November 2011. So it is very clear that said letter was not at all confidential

The main intention of these persons was to humiliate a judge of the supreme court of an independent sovereign country..

Sending correspondence to a judge of the supreme court and sending said e-mail to print media is unheard of and is not a proper procedure.

We anxiously wanted to know from the Learned counsel Mr Tajul Islam whether he has any discussion with these men before the e-mail was sent. He replied that he had no personal knowledge about the said e-mail.

As Mr Steven Kay, John Cammegh and Toby Cadman are not officially engaged lawyers as per the court before us on behalf of the accused Delwar Hossain Sayedee they are only foreign national members of a law chambers in London UK.

They are neither citizens of Bangladesh nor members of the Bangladesh bar council so we find it difficult to understand what promoted them to send such a letter addressed to chairman as to his recusal in a sub-judice matter.

Though discussed earlier that there is no proof of engagement in court as defence lawyer, we have seen statement that claim that they are members of the defence team and also claim that accused Delwar Hossain Sayedee as their clients. The accused DHS are also stated in open court that they were engaged by his national lawyers.

So a lawyer who claim an accused as his client has to maintain the code of conduct of his own country, as well as the code of conduct where the accused resides.

Now let us see whether there has been at all maintenance and respect for the code of conduct of his own bar.

Mr Toby Cadman, Mr John Cammegh and Mr Steven Kay QC on a number of occasion have made public statements, given appearances, attended political events at discrediting the justice process of the tribunal.

Such examples of this are set out below
- Steven Kay QC on 12 Oct 2011, on website, ‘A wolf in sheep’s clothing
- Toby Cadman on 15 August 2011, on Al Jazeera. Also on 16 October 2011, a public statement on behalf of defence team made to media, including on Toby Cadman’s own website, titled, ‘The international Crimes Tribunal Bangladesh: International Standards and Fundamental freedoms’. Also on 24 Aug 2011, a public statement on his website stating ‘Defence Team takes a Stand
- John Cammegh on 8 November 2011, a statement, “The Bangladesh War Crimes Trial: Reconciliation or revenge’ published on the webiste of the International bureau.
- Finally all of them by own signature sent a letter to ICT by name on 9 November 2012

We want to repeat here some parts of the Code of Conduct of Bar Council of England and Wells and standards of professional.

Section 7, para 701. ‘A barrister … must not undertake any task which: (i) he knows or ought to know he is not competent to handle.’

It is not established that they are ‘competent to handle’ this case by standing for a client in a court of law, and Toby Cadman and two others of the same chambers definitely know that they are not members of the Bangladesh Bar Council so cant stand for accused before this tribunal.

Even then, they took the task of defending Sayedee, so appear to be in clear violation of 7.01 of Code of Conduct.

If that term ‘competant to handle’ not apply then as not physically before the tribunal, but to help other lawyers in providing advice, Toby Cadman and others should maintain respect for para 709 which states that ‘A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.'

All of them have made public statements, given appearances, aimed at discrediting the justice process of the tribunal and then sending letter on 9 November, not only addressed the letter to tribunal but also sent to national press so that on 10 November Sangram published contents of the same e-mail

So action of Steven Kay etc appears to have violated clause 7.09.01 of the code of conduct of Bar Standards Board, 8th edition of Bar Council which came into effect in October 2004.

They can say that they have a right to express their views. Yes, can do it by para 7.09.02 in an educational or academic context but sending e-mail to chair of the tribunal and then to print media cannot come under para 7.09.02

We are of the view that Mr Toby Cadman, Mr John Cammagh and Steven Kay QC have breached the provision of para 7.09 of Code of conduct of Bar council of England and Wales.

Ask that the register or his deputy to send copy of this order and copy of e-mail to bar standards board and for their perusal and consider the content of the order

May a copy of this order be sent to miniser of law, Justice and Parliamentary Affair to undertake above procedure before the standards board. Accordingly the matter is disposed of.


I think this matter may well be a bit more complicated than the tribunal (or indeed vocal supporters of the prosecution, and indeed local defence lawyers) are making out.

1. First of all it seem pretty clear that the three barristers have to comply with the Bar Standards Board code. There is an exemption for 'international work' (see annex one to the code) but the three barristers do not appear to fall within it. Moreover, in my correspondence with Tony Cadman about this (see more below: any quotes are from a statement that he has given), he has not tried to make this argument.

So the senior defence lawyer Abdur Razzaque's point made in court that the three barristers did not appear to comply with the code is incorrect.

2. The next question is about whether, under the Code, it was appropriate for the barristers to send this letter to the chairman of the tribunal. It is very unusual for lawyers to correspond with a judge.

Lets us first look at the three British lawyers response to this. All in all they seem to be making five points:
(a) that the letter 'communicated was addressed solely to the Chairman' who was not a party to the proceedings about his recusal;
(b) that the issue involved a very serious matter and it was written in the greater interests of justice: 'One of the most valued principles in ensuring a fair trial is the right of an accused to be heard before an independent and impartial tribunal ... It remains our position that we acted in the interest of justice to bring to the attention of the tribunal the serious issue concerning its composition because we are concerned about the fairness of proceedings. Ensuring that each accused person appearing before the Tribunal receives a fair trial by an independent and impartial tribunal according to the highest standards of fairness and due process is an essential requirement for ensuring that justice is not only done, but importantly it is seen to be done. "
(c) that they have been prevented from addressing the court: 'In light of the fact that foreign counsel practically prevented from representing accused before the ICT and acting in the best interest of their clients that there exists a need to highlight concerns expressed as to the Chairman's position.'
(d) that the 1973 Act prevents either party from challenging the position of a judge therefore direct communication with the judge is necessary: "It is also noteworthy that Section 6(8) of the 1973 Act does not permit the challenge of any judge for whatever reason. This appears to be the position adopted by the Tribunal in our recusal petition."
(e) that they did not breach the professional standards as it 'is equally a requirement that one must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person. This of course must be read in conjunction with the overriding requirement not to bring the administration of justice or the judicial system into disrepute.'

On these arguments, I would make the following points:
- Although the Bar Standards Code does not say directly that a Barrister cannot write directly to a judge, I think there is a general assumption that such a practice is very questionable. It is true that the letter was sent directly to the chairman, and not to the other judges - but at the time of sending, I don't think the British barristers knew that he would not be sitting when this application was heard. However, it should be noted that whilst the application before the tribunal sought an order from it recusing him from sitting, the letter directly asked the tribunal chairman himself to recuse himself - so arguably the letter touches on a different (though connected) point than the application before the tribunal.

- It would seem to me difficult for the barristers to argue that because they cannot represent their clients in court, they have to write a letter to the judge to this effect. This is because there are local lawyers who are representing the same client, who the foreign barristers work closely with, and who can equally make this point to the tribunal.

- For the Bar Standards Board it is likely to come down to an issue of balance: Assuming it is generally wrong for barristers representing a client to write letters to a judge involved in the case, is this principle overridden by wider interests of justice. This will be the key question in hand, to which we will have to wait and see.

3. The next question is whether or not (a) the letter should have been distributed to the media and (b) whether the barristers should generally be publishing statements as they do, some of which are directly send to the media.

Although the tribunal has assumed that the British lawyers distributed this letter to the media, as far as I know there is nothing to show that they did. I, myself was infact sent a copy of the e-mail/letter that was sent to the registrar in the afternoon of 9 November. It was from an e-mail address that I did not recognise, and comes up with no entries when googled. As I was suprised to received the letter, I immediately e-mailed Tony Cadman to ask him about it, and it was clear from his response that he was suprised that I had received it.

It is much more likely that the letter was sent to local Bangladesh media by one of the local lawyers or perhaps one of supporters of the defence team in Bangladesh. the question then becomes whether or not the foreign lawyers authorised this to happen, and we don't know that at the moment. It of course could also have been sent by the registrar's office, but I think that is very unlikely.

Putting that issues to one side, apart from section 709 of the Bar Standards Code (quoted by the tribunal), there is also specific guidance that the BSB has produced relating to the interpretation of this section. The Tribunals appear not to have been aware of that, or if they were, they did not mention this in their ruling. (see this page and go to 'Commenting to the media on cases' in third batch of guidance).

The operative parts of this states:
There is no longer anything to prevent barristers informing the press about their client's view of the proceedings or what their client is seeking to achieve. It is obviously essential that the client should agree to whatever is said on his or her behalf.

Similarly, there is nothing to prevent barristers informing the press of the facts of a particular case or of the particular legal issues that will be discussed. They should be careful, however, not to add any personal views about the merits of the case or the appropriate outcome.
Under the sub-title, 'Bringing the Administration of Justice into Disrepute' it goes onto say:
'Barristers should be careful to express themselves carefully if they are commenting on cases in which they have been involved. It will almost invariably be inappropriate to make allegations about the good faith of a judge or other judicial officer or to use inflammatory language.

The purpose of these rules is to protect the independence of barristers. While barristers owe strong duties to their lay clients, they also owe an overriding duty to the court and should be careful not to bring their independence into question.'
This guidance makes it clear that the key issues in relation to the media, is that (a) a barrister cannot give his personal views, but only that of his client and (b) that their comments should not 'bring the administration of justice into disrepute' by for example the questioning the 'good faith of a judge' or by using inflammatory language.

I think we can assume that all the comments made to the media are the views of the client, or are said with the consent of the client - there is nothing to suggest otherwise (see point 5 below about the issues of representation).

Do the comments bring the 'administration of justice into disrepute'? First part of this is to see whether they have they questioned the good faith of a judge? It does not seem that the letter does that. The letter specifically states: 'This is not a question of personal integrity or personal attack on character,' and focuses instead on 'the appearance of bias in the case against our client.' I also don't think that any of the other statements/ documents mentioned by the tribunal - if one cares to read them (see links above) - question the good faith of the judge.

The second part of this is whether the letter/statements use inflammatory language? The language of the letter itself is very far from inflammatory - and indeed goes out of its way to be polite. Whilst the statements do raise serious criticisms about the legal procedure relating to the tribunal and concerns about the charges laid against Sayedee, it is also difficult to see how you can say that they are inflammatory.

In its statement, the three British lawyers also argue that any criticisms that the tribunal may have with their conduct, must be seen within an over-riding objective, which they as lawyers say they have in representing their client: 'It is difficult to imagine how the criticisms made [by the tribunal] can be interpreted as a breach of this overriding objective,' they state.

They say this in the context of the criticism they have of the tribunal which are set out in their statement as follows:
(1) The First Constitutional Amendment removes all fundamental rights and removes any right to bring a jurisdictional challenge to the International Crimes (Tribunal) Act 1971;
(2) The International Crimes (Tribunal) Act 1971 excludes the application of procedural norms by expressly removing the Criminal Procedure Act and Criminal Evidence Act;
(3) The Presidential Order No. 16 of 1973 grants immunity from prosecution one side to the conflict without exception;
(4) The International Crimes (Tribunal) Act 1971 prevents any interlocutory appeal or judicial review;
(5) The International Crimes (Tribunal) Act 1971 prevents any challenge to any decision issued by the Tribunal with the exception of conviction and sentence;
(6) There is a complete absence of rules of evidence and disclosure;
(7) Counsel is prevented from having privileged communications with their clients;
(8) The Tribunal has resisted the application of international law;
(9) There are no clear definitions of crimes;
(10) The People’s Inquiry Commission has prejudged the guilt of some of the accused;
(11) Those convicted by the Tribunal are liable to a sentence of death;

It will be upto the Bar Standards Board to determine whether the foreign lawyers have breached its code in relation to dealing with the media. However it would seem to me, that in the context of the concerns which the barristers have with the tribunal (and of course the BSB will be looking at these concerns through the eyes of British lawyers and the standards that they expect) that it is unlikely that the Board will find against them on this particular point.

5. Another issue raised by the tribunal is the question of whether the British lawyers can be said to represent Sayedee. I don't fully understand the point being made here by the tribunal, however I think the argument is that since there is no power of attorney with the court, then they have no right to send a letter to the tribunal on behalf of Sayedee.

However, clearly the foreign lawyers do represent Sayedee - having been instructed by the local Bangladesh lawyers. I am not clear why they would need to give the court a power of attorney if they are not arguing before it or filing applications.

6. Final point. Abdur Razzaque, the lead defence lawyer, told the tribunal that he was not consulted about the letter to the tribunal chairman. I think this is difficult to believe. It is clear that the foreign and local lawyers work closely together and the idea that Abdur Razzaque was not aware of the letter being drafted and sent, does kind of beggar belief! I think the local lawyers have to be a bit more straight about this kind of thing - particularly when they are making these comments inside the tribunal.

No comments:

Post a Comment